JBS:
That's creating evidence. We could invent all kinds of facts. I do believe a Surveyor is responsible for his workers. If you use a land owner and he sets a pin using a autonomous reading with the RTK, causing a 4' error, are you free from liability then?
Did he accept pins or what they were suppose to represent?
Why not treat them as closing corners here then, extend them 4' everyone is happy.
I agree with the off line issue, just had to cause trouble. lol. Guess it's the Surveyor in me.
JBS:
If those pins set 4' off are held and relied on for 50+ years then I say yes, you are free from liability.
JBS:
> That's creating evidence. We could invent all kinds of facts. I do believe a Surveyor is responsible for his workers. If you use a land owner and he sets a pin using a autonomous reading with the RTK, causing a 4' error, are you free from liability then?
I didn't know Surveyor's liability was a question in the OP. And I believe that the owner and the buyer can assist the Surveyor...or establish a their common boundary without the dang Surveyor.
DDSM
Did he accept pins or what they were suppose to represent?
> Why not treat them as closing corners here then, extend them 4' everyone is happy.
Everyone was happy until the expert measurer came in and told them their pins were "off" 4'.
JBS:
No one built anything to these pins though. They weren't relied on, just happened to be there. There must have been a question, or why was a survey done for a fence. If the owners agreed and built the fence, then I'm in agreement. For some reason they had a new survey done in 96 ( if I remember the dates correctly).
JBS:
Maybe they were buried. Maybe there was kudzu grown up and they couldn't see them. Who knows? The fact remains that they are there and have been for a long time, right or wrong, and as a retracement surveyor you are bound by them. And no, they didn't just happen to be there. They were set by a Professional Surveyor to mark the bounds of a property.
Dan:
> I would not assume that Eastman, or any buyer, had seen anything of which s/he had not been given written notice. Obviously in a recording state the presumption might be otherwise.
>
> There is nothing in the original fact set to indicate that Eastman has ever even set foot on this property!
I believe that Eastman has a duty to know what he's bought and if he (or any agent of his) hasn't stepped foot on the property in the 35 years he owned it, then he's probably lucky he's only losing 4 feet.
JBS:
>That presumption is overcome when Eastman testifies, "I was completely unaware of the existence of a survey or markers on the ground, and I never walked the ground prior to purchase." Then, the unilateral action of the seller (who would have been marking the remainder, not the eastern parcel, would not prevail; senior rights would prevail).
OK, good enough (assuming Maine's courts have signed on). But in my neck of the woods it would not be not at all uncommon for said presumption to be thus overcome.
> The extrinsic evidence (the iron pipes) is to be considered by the surveyor.
In Maine, such evidence would only be admissible in construing an ambiguous deed, and I don't see the ambiguity in the deed language itself here.
"The practical construction given by the parties as an interpretation of the grant is never admissible to throw down language which is definite and certain...."
-- Parkman v. Freeman, 117 A. 301 (Maine, 1922)
I don't have the entire case handy but this quote suggests the pipes might not matter even if Eastman had known about them (in Maine).
Senior nights?
Sort of my take on the whole thread.
WHY EVER HAVE IT SURVEYED?
FUTURE SURVEYORS ARE NEVER GOING TO RETRACE IT OR ACCEPT IT.
SAVE YOUR MONEY AND AVOID THE CHAOS!!
Senior nights?
The money for the survey was well spent. The culprit here is the 1960 scrivener, who should have called the pins and the survey in the deed to Eastman. This thread would have been a lot shorter if s/he had!
JBStahl
Overcome them when the evidence is sufficient and no is harm done in rejecting them I can agree to. In this case I would probably be setting new monuments primarily because the found monuments had no record, were set outside of the legislated precision at the time and had not been relied on, which could be construed to show that they were not accepted at the time by the owners as the boundary. The lack of any evidence of reliance is a strong indicator of rejection or ignorance of their existence. Correcting a problem when no harm is done, with the full knowledge of the owners is not a bad thing for a surveyor to do. There does need to be a recorded survey showing what was found, what was done along with a narrative which explains it all. Blindly holding any monument thinking you are protecting your butt so you can get on to the next job is not being a problem solver. We are not here forever and we have an obligation to make corrections where it can be done without harm, even when it may mean loosing some money on the job. Evidence of reliance of those monuments would be ample justification on holding the found pins, if it looked like a storm was brewing between the owners because of the difference in record and monument location, then speaking to the owners, then by agreement setting new monuments to represent that agreement would be worth trying. Hold and run would be a poor choice in my view, just as setting new and running would be. We are in a position to keep problems from ending up in court, but when we can't, then choose what can best be defended in those courts, that may not be holding monuments that you find where you would not expect to find them.
jud
You need to understand primary reference material which is not court cases, they are secondary attempts to explain the application of primary principles.
The overriding primary principle is presented in various 'rules of evidence' like Corpus Jurist, (applicable when latin was the language of the law), Corpus Jurist Secondus, American Jurist, American Jurist 2nd, and other noted references like Wigmnore's compenduim on Evidence which was the defacto courtroom reference in Wisc. from 1923 to @1967. He says: From Wigmore;’s compendium on “Evidence”, 2nd. Edition, Vol. 5 Section 2476:
“It is not necessary, and it is not humanly possible, for the symbols of description, which we call words, to describe in every detail the objects designated by the symbols. The notion that a description is a complete enumeration is an instinctive fallacy which must be got rid of before interpretation can be properly attempted. …”
Title to land in the US is established by unchallenged occupation and control; and when statutes of repose are enacted, the time limit allowing challenge of such occupation and control can be a short a 3 or 5 years. Also, if there is proof that a 'line' was relied upon to position an improvement in accordance with zoning/building requirements, the period allowing challenge is much shorter, depending on the particulars of each situation.
Rules of priority for surveyors always start with the presumption that unwritten rights, (unchallenged occupation and control), will trump the written instrument. Lawyers and judges cannot deal with these because the determinants are on-site physical evidence which is the surveyor's responsibility as we are the only ones licensed to enter onto the land, recover and analyze this physical evidence. This is why, when the surveyor fails to do his duty, the court falls back on the only 'evidence' available to it which is the documentation, and that is the reason why court cases are not a reliable source of information for surveyors.
Richard Schaut
JBStahl
In this case we are to presume that the found monuments are the original monuments set by the surveyor in 1960. That is what the evidence suggests. In that case, whether his measurements were right or wrong, we are to hold those monuments.
Senior nights?
We all live with different situations. In the settled part of the county I live in if called for markers in the original conveyance are required you pretty much have nothing, just unmeasured bearings and distances assuming every section is 5280 x 5280, perfectly square and properly oriented to north.
So the choice is to accept reality or create total chaos when surveying. I started out as a clueless to the law schooled in engineering surveyor. But it never made sense to me when every boundary was upset by the math. So I started researching the law (applied common sense). As far as the affect on landowners (human beings with skin in the game) the law treats them better and more fairly than the math. It's a preponderance of the evidence when it comes to boundaries. Once there is a problem between the reality and the paper deed, extrinsic evidence needs to be applied. If you make a boundary survey a math type problem where every step has to be exactly right to get the one answer then there never will be a stable boundary line on the ground. If every t needs to be crossed and every i dotted then it would be impossible to survey most parcels and ever be very near the original location. If you follow the law it's actually fairly simple but you can't do it on a calculator or graph paper.
This has gone around so many times over the years on these boards I can't believe I even replied. When I first seen the original post I thought it wouldn't go anywhere but it sure did. The more things change the more they stay the same. If surveying still exists as a profession in twenty years this same debate will be going on. If surveying doesn't exist then some other group willing follow the law will have taken over. Me, I'll probably be dead or have lost my mind to the ravages of time.
Thank You Richard Schaut
"Title to land in the US is established by unchallenged occupation and control" which is exactly what we do not have in this case.
Paul in PA
Thank You Richard Schaut
The only challenge is by the surveyor. The last 50+ years has been in harmony. There was no problem until a new surveyor or expert measurer made a problem.
JBStahl
> Overcome them when the evidence is sufficient and no is harm done in rejecting them I can agree to.
Harm done to who? By accepting the monuments, are we "taking" 4 feet from one owner? By rejecting the monuments, are we "taking" 4 feet from the other owner? This cannot and is not how boundaries are determined. Boundary locations are determined by evidence and by rules of law which govern their location. Surveyors cannot pick and choose which evidence they will gather, which they will ignore, and which rule of law they will or will not apply.
>In this case I would probably be setting new monuments primarily because the found monuments had no record, were set outside of the legislated precision at the time and had not been relied on, which could be construed to show that they were not accepted at the time by the owners as the boundary. The lack of any evidence of reliance is a strong indicator of rejection or ignorance of their existence.
"Monuments [having] no record" would eliminate the overwhelming vast majority of monuments ever placed by a surveyor. If the monuments we set are meaningless, then how can a boundary ever be established with certainty? We have over a century of surveys that were conducted in my area with no "record" repository in existence. Are all those monuments worthless because there is no "record?" The evidence that always matters is what the landowners know and what they have done with that knowledge. Yet, to this day, the vast majority of surveyors shun their responsibility to gather that evidence and will, instead, make some flippant decision which directly affects both landowners.
"Legislated precision" isn't used in common law to decide boundary locations; they are used to determine if a surveyor was negligent in the work they performed. Legislated precision cannot govern boundary locations. The concepts of "how close is close enough," and "too far off" don't exist in land boundary law.
>Correcting a problem when no harm is done, with the full knowledge of the owners is not a bad thing for a surveyor to do.
Yes, it's not a bad thing; it's just illegal when it violates land boundary law.
>There does need to be a recorded survey showing what was found, what was done along with a narrative which explains it all.
The landowners have testified already that there is a survey that was performed in 1960 at the time the original boundary was created. We can't claim that it "doesn't matter" just because it's not in the record or called for in the written words of the conveyance.
>Blindly holding any monument thinking you are protecting your butt so you can get on to the next job is not being a problem solver. We are not here forever and we have an obligation to make corrections where it can be done without harm, even when it may mean loosing some money on the job.
Agreed in part. Blindly holding the monument without evidence and blindly rejecting the monument without evidence are both wrong. The evidence must be gathered and must be considered for the facts proven. I disagree, however, that we have an "obligation to make corrections" based upon any test of "harm." We should provide a service repairing problems when they do arise and we should be charging a premium for that work, not "loosing money" on it.
>Evidence of reliance of those monuments would be ample justification on holding the found pins, if it looked like a storm was brewing between the owners because of the difference in record and monument location, then speaking to the owners, then by agreement setting new monuments to represent that agreement would be worth trying.
Agreed, but only when the evidence and the law are so contradictory that the ambiguity cannot be resolved. Only then will the law allow the landowners to enter an agreement to resolve them.
>Hold and run would be a poor choice in my view, just as setting new and running would be. We are in a position to keep problems from ending up in court, but when we can't, then choose what can best be defended in those courts, that may not be holding monuments that you find where you would not expect to find them.
We must always choose "what can best be defended" in court. That's the location determined by the application of the appropriate legal principle to the facts of the case. The only way to determine the facts of the case is to gather and analyze the evidence in accordance with the rules of law. That's the surveyor's duty.
JBS
1960 is pretty long ago. Jones was probably an adult when he sold about 11.5 acres of land to Eastman. Not knowing anything else, I'd guess he was 45 years old. At the time of the re-survey, in 1996, Jones would have been 81 years old, quite likely either dead or without memory of what happened.
In a similar way, I would guess that Eastman too was 45 years old at the time of the 1960 transaction, and thus also quite likely dead or whose memory was unreliable in 1996.
This case would seem to hinge in large part upon the circumstances attendant to the 1960 transaction. It is quite possible, I admit, that my presumptions about the age of the parties in 1960 is wrong, and thus that either or both of Jones and Easterly were alive and mentally capable adults in 1996 when the re-survey occured, and when apparently the imprecision of the 1960 survey was discovered. The original post implies that the 1996 surveyor was able to determine with some certainty that there was a survey in 1960 and that the irons found at 496' were set at the time of the 1960 survey. To me, that determination would have to be made based upon statements of reliable character made by either Jones or Eastman.
I think it is far more likely that the 1996 surveyor would have found the irons at 496' during the course of his field work, but that he wouldn't have any reliable basis upon which to determine that the irons found were in fact set in 1960 and relied upon by Jones and Eastman.
It would of course be changing the terms of the original post, and therefore maybe not appropriate, but if we fast forwarded the 1996 survey to 2011, and say that Jones and Eastman are both dead, what then? Can the 2011 surveyor presume that the irons found were set in 1960, and further presume that they were relied upon by Jones and Eastman?
Great discussion by the way.
> Jones owns a parcel of land one thousand foot square which has old irons at the 4 corners. Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale and irons are set 500’ west of the east line in the front and back. The deed reads, “the eastern 500’ of Jones’ land”. In 1985 Jones sells the remainder to Westerly. The deed reads “the western 500’ of Jones’ land”. No survey is performed but the 1960 irons are pointed out to Westerly. In 1995 Eastman sells to Mr. NewYoung. A year later a survey is performed to erect a fence. All irons are found. The irons set in 1960 are found to be 996’ west of the east line. Where is the property line?
JBStahl
You failed to mention that the surveyors goal when he arrives on a project where harmony exists is to leave with that harmony intact. That means recognizing the several options for which you could find case law to support be it either holding or rejecting, inform the owners that you can either hold or reject evidence that has not been relied upon along with the lack of evidence that it has ever has been relied in the past. Nothing said about the acceptance and use of the old survey by the owners or any attempt by them to recover the evidence of that survey and make a visible claim to that line. The surveyor in this case is not limited to choosing one element of the law and using it, that denies the owners the opportunity of reaching an agreement on just what the deed documents represented, memorialize that agreement with monuments if needed or flag up the old ones and a survey in the record for all to see. The owners can then take control of their side of the line and if as you say, some would consider doing so to be less than legal, time will correct that beyond any doubt as to what is claimed as a boundary. I know most of the land owners around here, some with small acreages and some who own many sections and none except the imports from out of the area want any more or any less than what their deed documents say, then again those document use aliquot parts, government lots and sections for descriptions. No monuments can be made into a marker of ownership unless the owners make it so, many convenience fences built here with never a claim of ownership. Section lines and subdivision lines are fixed, ownership lines can get shifted by the actions or lack of action of the owners or the courts. I have also been aware of surveys done that were rejected by the owners, those monuments and a record of those surveys is still in the records, what is not in the records is the rejection of the owners of the results of that survey. Let the owners choose, using knowledge and guidance where there could be two different defensible choices. NO reliance in the survey, and the pins being lost for some time are the facts here. After the recovery of the monuments set during that survey could the actions of the owners establish that boundary, they still have the opportunity to reject the old survey, that is their right, don't deny them that right.
jud
